Donahue v. Romahn

• Decision Date: 15 February 1960
• Citation: Donahue v. Romahn, 196 N.Y.S.2d 887, 10 A.D.2d 637 (N.Y. App. Div. 1960)
• Parties: Anna DONAHUE, Respondent, v. Otto Paul ROMAHN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 887

196 N.Y.S.2d 887

10 A.D.2d 637

Anna DONAHUE, Respondent, v. Otto Paul ROMAHN, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 15, 1960.

Evans, Orr, Gourlay & Pacelli, New York City, for appellant; Francis J. Marcheret, New York City, of counsel.

Albert M. Goldberg, Mineola, for respondent. Before NOLAN, P. J., and UGHETTA, KLEINFELD, CHRIST and BRENNAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries alleged to have been caused by the negligent operation of a motor vehicle, the appeal is from an order which (1) granted a motion for summary judgment striking out the answer, and (2) directed an assessment of damages. Respondent was asleep in the motor vehicle, which she owned and which was being operated by appellant, when he fell asleep or 'blacked out' and it veered to the left and collided with a telephone pole, causing the injuries complained of.

Order reversed, without costs, and motion denied.

The record presents triable issues which may not be resolved on a motion for summary judgment (Phelan v. Houghton, 9 A.D.2d 767...